Probert v. Chicago, I. & L. Ry. Co.

• Citation: 93 F.2d 259
• Decision Date: 11 December 1937
• Docket Number: No. 6290.,6290.
• Parties: PROBERT v. CHICAGO, I. & L. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

93 F.2d 259 (1937)

PROBERT v. CHICAGO, I. & L. RY. CO.

No. 6290.

Circuit Court of Appeals, Seventh Circuit.

December 11, 1937.

Clyde L. Day, Howard W. Hayes, and Raymond B. Morris, all of Chicago, Ill., for appellant.

John D. Black, George B. Christensen, and Douglas C. Moir, all of Chicago, Ill., for appellee.

Before EVANS, Circuit Judge, and LINDLEY and BALTZELL, District Judges.

BALTZELL, District Judge.

This is an action wherein appellant sought to recover damages from appellee for injuries which are alleged to have been sustained because of certain acts of negligence on the part of appellee in the operation of one of its trains. The declaration is in three counts. The act of negligence charged in the first count is that appellee failed to warn appellant that its engine, with freight cars attached, was obstructing the public highway upon which he was traveling in an automobile. The second count charges that, at the time of the accident, the following statute was in force in the state of Indiana, the state in which the accident occurred, to wit: "Whoever, being a conductor or other person having charge of, or running a railroad train, carrying, or used for carrying, freight, permits or suffers the same, or any car or locomotive engine composing the same, to remain standing across any public highway, street, alley or farm crossing, or who, whenever it becomes necessary to stop such train across any public highway, street, alley or farm crossing fails or neglects to leave a space of sixty (60) feet across such public highway, street, alley or farm crossing, shall be fined." 4 Burns' Revised Statutes Annotated, 1933, § 10-3904.

It is further charged in this count that appellee violated the provisions of the statute in that it failed to leave a space of 60 feet over the highway as therein provided. The third count charges that appellee failed to ring the bell on the engine continuously until it had fully passed the highway crossing, in violation of an Indiana statute. 4 Burns' Revised Statutes Annotated, 1933, § 10-3912. The acts of negligence charged are alleged to have been the proximate cause of the accident in which appellant received his injuries.

The case was tried to a jury, and, at the close of the evidence introduced on behalf of appellant, the district court sustained appellee's motion for a directed verdict in its favor and directed the jury to return such a verdict. The jury returned a verdict for appellee and the court rendered judgment thereon, from which judgment this appeal is being prosecuted. The only question presented is whether or not the District Court erred in giving a directed verdict in favor of appellee.

At all times with which we are here concerned, appellee owned and operated a railroad extending from the city of Chicago, through the state of Indiana, to the city of Louisville, Ky. On October 3, 1932, a freight train was being operated upon its railroad and reached Wanatah, Ind., at about 4:30 o'clock that morning. The railroad extends in a northerly and southerly direction at that place, and the train was traveling in a northerly direction. It consisted of a locomotive engine, tender, caboose, and several freight cars. At Wanatah, and just before it reached the Pennsylvania Railroad crossing, it cut off all of its cars except a "deadhead" caboose and two low-sided coal cars, one of which was loaded with wheels and the other with coal. The train then consisted of the engine, tender, "deadhead" caboose, and the two cars in the order named. About a fourth of a mile north of Wanatah there is a public highway, which is known as U. S. highway No. 30 and which extends in an easterly and westerly direction and crosses over the tracks of appellee's railroad at that point, In addition to the main track, there is also a switching track which crosses the highway at that point and joins the main track a short distance north of the highway crossing.

At about 3:30 o'clock on that morning (October 3, 1932), appellant, his brother Edward, and a young man by the name of Stolarsky, left their home in Chicago, Ill., in a Chevrolet coupé, en route to Steubenville, Ohio. Edward was driving the automobile. Appellant, who had never driven an automobile, was seated next to the door on the right-hand side, holding on his lap a Boston bull dog named "Packey." Seated between the two Proberts was Stolarsky. Shortly after leaving their home, they entered U. S. highway No. 30 and continued traveling in an easterly direction upon that highway, until they reached the point where it crossed the railroad track of appellee just north of Wanatah, Ind. This point was reached shortly after 5 o'clock that morning. A short time prior thereto, the train, consisting of an engine, tender, "deadhead" caboose, and two freight cars, (gondolas) on appellee's road, had passed over this highway crossing going north and stopped just as the last car had cleared the switch, a short distance north of the highway crossing. The purpose of its movement was to place the last car, which was loaded with coal, on the switch, and to leave it at a point a short distance south of the highway crossing. As the train passed over the crossing going north, the rear brakeman got off at the highway crossing to guard it. The other brakeman got off the train at a point where it cleared the switch and opened it so that the train could enter. He remained at that point. The train then backed on the switch, and, as the second car passed over the crossing, the rear brakeman, who was guarding the crossing, boarded it so that he could uncouple the coal car. At the time the train stopped for the uncoupling of the coal car, the rear end of the tender was just south of the center of the highway. The engineer was seated in the cab of the engine, watching for the signal of the brakeman to pull out. The signal was given at a time when the train had been over the highway crossing just long enough for the brakeman to uncouple the coal car, not to exceed two minutes. The engineer opened the throttle, and the train moved forward about 10 feet, when he saw the lights of the automobile in which appellant was riding, as a gratuitous passenger, approaching on the highway from the west at such a rate of speed that he believed it could not be stopped in time to avoid striking his train. He immediately stopped the train before the automobile struck it.

The automobile struck the "deadhead" caboose at a point near the front trucks. It struck with such force that the caboose was derailed, even though it weighed approximately 37,000 pounds. The driver of the automobile...